May Trial Court Consider Motion for New Trial After
Defendant's Conviction Has Been Upheld on Appeal?

After a court of appeals has reviewed and affirmed the conviction of a criminal defendant on direct appeal, does the trial court in which the defendant was convicted have jurisdiction to consider a motion for a new trial based on discovery of new evidence where the legal claim asserted by the defendant in the new trial motion was not addressed in his direct appeal?

Do Ohio’s intermediate courts of appeals have jurisdiction to review a trial court’s judgment denying a defense motion for a new trial in a death penalty case, or does the 1994 amendment to the Ohio Constitution that eliminated intermediate appellate review of capital cases require death penalty defendants to appeal such rulings directly to the Supreme Court of Ohio?

BACKGROUND: Roland Davis was charged with aggravated murder and other felony offenses for the July 2000 stabbing and bludgeoning death of Elizabeth Sheeler in her Newark apartment. During his trial in the Licking County Court of Common Pleas, an expert witness for the state testified that blood found at the crime scene matched Davis’ DNA profile, and indicated that the possibility of a person other than Davis being the source of that blood was one in 97.1 quadrillion. Davis’ trial attorneys did not present expert testimony to dispute the state’s DNA evidence.

Davis was found guilty on all counts and sentenced to death. The Supreme Court of Ohio upheld his convictions and sentence on direct appeal in January 2008.

In October 2008, Davis filed a petition in the common pleas court seeking leave to file a motion for a new trial under Ohio Criminal Rule 33(A)(6), which allows trial courts to grant a new trial based on newly discovered material evidence that the defendant “could not with reasonable diligence have discovered and produced at the trial.” A separate provision of the same rule, Crim.R. 33(B), places a time limit for filing new trial motions based on new evidence of 120 days after the date of the defendant’s conviction, except where the defendant makes a showing that he was “unavoidably prevented” from discovering the new evidence within the 120-day deadline.

The new evidence on which Davis based his motion was an affidavit from a DNA expert who had examined the state’s DNA evidence after his trial was over stating that the evidence was questionable and the state’s expert’s testimony about the test results was overstated and based on a flawed statistical database. His motion asserted that he was entitled to new trial based on ineffective assistance from his trial attorneys, because they had failed to retain a defense expert to examine the DNA evidence and present testimony challenging the state’s characterization of the test results.

The trial court denied Davis’ new trial motion based on a finding that he had failed to demonstrate that he was unavoidably prevented from obtaining an independent review of the state’s DNA evidence within 120 days after the date of his conviction, and, therefore, was time-barred by Crim.R. 33(B) from applying for a new trial based on that “newly discovered” evidence.

Davis appealed the trial court’s ruling to the 5th District Court of Appeals. The 5th District did not rule on the merits of Davis’ arguments. Instead the three-judge panel held that the trial court had acted without jurisdiction in considering Davis’ motion for a new trial based on the Supreme Court of Ohio’s decision in State ex rel. Special Prosecutors v. Judges. In Special Prosecutors, the 5th District said, this Court held that a trial court could not regain jurisdiction over a criminal defendant’s case to consider a new trial motion after a court of appeals had affirmed his convictions. Applying that rationale to Davis’ case, the 5th District held that because the Supreme Court had already affirmed Davis’ convictions on direct appeal, the trial court could not thereafter exercise jurisdiction to consider a motion for a new trial because granting such a motion would effectively vacate or “overrule” a decision of a higher court.

Davis sought and was granted Supreme Court review of the 5th District’s ruling. After accepting jurisdiction, the Court asked both sides to submit supplemental briefs on the separate question of whether a 1994 amendment to the Ohio Constitution that eliminated intermediate appellate review of death penalty cases required Davis, who remains under a sentence of death, to appeal the denial of his new trial motion directly to the Supreme Court rather than to the 5th District.

Attorneys for Davis argue that the intent of Crim.R.33 is to allow criminal defendants to pursue post-trial motions for a new trial based on a limited range of issues, such as juror or prosecutorial misconduct or new evidence that was not known to the defendant during the brief time frame immediately after trial within which his direct appeal must be filed. They assert that this Court’s decision in Special Prosecutors was intended to apply only to cases in which a trial court based its grant of a new trial on an issue that had already been directly addressed in an appeal to a higher court. They urge the Court to reverse the 5th District’s interpretation of Special Prosecutors, which they say is overbroad because it effectively eliminates the possibility of Crim.R. 33 relief for any defendant who has pursued an unsuccessful direct appeal of his conviction − even though the court of appeals did not consider or rule on the specific legal claim that is asserted in the defendant’s motion for a new trial.

With regard to the effect of the 1994 constitutional amendment on appeals such as Davis’ in this case, his attorneys point to language in the amendment that precludes intermediate appellate courts from exercising jurisdiction “to review on direct appeal a judgment that imposes a sentence of death.” Because the trial court judgment under appeal in this and similar cases does not impose a death sentence, but merely denies a motion for a new trial, they say, review of such decisions remains within the jurisdiction of intermediate appellate courts.

With regard to the constitutional issue, attorneys for the state point out that the amendment adopted by voters in 1994 confers on the Supreme Court jurisdiction over appeals in “cases in which the death penalty has been imposed.” They argue that this language precludes intermediate courts of appeals not only from hearing the direct appeal of a death sentence, but also from hearing secondary or “indirect” appeals in death penalty cases. They point out that allowing trial courts to hear and decide issues like Davis’ motion for a new trial after the defendant’s conviction and death sentence have been affirmed on appeal creates the potential for a lower court to issue a ruling that, in effect, “overrules” a decision of the Supreme Court. They contend that only the Supreme Court may exercise jurisdiction to review any post-trial motion advanced in a capital case, because only the Supreme Court has authority to revise or reinterpret its own prior holdings.

To the extent that non-direct appeals in capital cases have been heard by intermediate appellate courts in the past, and that retroactive application of the state’s position would create the potential for relitigation of those cases, the state urges the Court to issue a ruling requiring all direct and indirect appeals in death penalty cases to be brought in the Supreme Court, but applying that requirement prospectively only (i.e. only to appeals brought after the date of the Court’s decision in this case).

Note:The Innocence Network, Ohio Association of Criminal Defense Attorneys and Cuyahoga County Public Defender’s Office have entered amicus curiae (friend of the court) briefs in support of Davis’ position.

Contacts
Kenneth W. Oswalt, 740.670.5255, for the state and Licking County prosecutor’s office.

Under Exception in Political Subdivision Immunity Statute

ISSUE: In determining that a political subdivision is not immune from civil liability for a traffic accident because it failed to keep a segment of a public roadway “in repair,” may a trial court consider the skid-resistance of the pavement at the time of the accident in the absence of any evidence of the original skid-resistance of the pavement at the time the road was constructed?

BACKGROUND: Under Ohio’s sovereign immunity statute, R.C. Chapter 2744, a political subdivision of the state (e.g., a city, county, township, etc.) is generally immune from civil liability for injury or property damage to a third party arising from the negligent performance of an official duty by a government agency or its employee. That general immunity is, however, subject to certain exceptions set forth in the statute. One such exception, set forth in R.C. 2744.02(B)(3), states that political subdivisions “are liable for injury, death or loss to person or property caused by their negligent failure to keep public roads in repair ...”

This case involves a single-vehicle traffic accident in which 15-year-old Michelle Sanderbeck, a passenger in a car driven by a 16-year-old, was killed when the car failed to negotiate an “S” curve on a Medina County road. Police reports estimated that the car was traveling at a speed of approximately 56 miles per hour at the time of the crash. The posted speed limit for the road was 45 miles per hour.

Sanderbeck’s father filed suit against Medina County and the county commissioners on behalf of himself and his daughter’s estate, alleging that the county had failed to keep the stretch of roadway on which the accident occurred “in repair.” In pretrial submissions to the trial court, Sanderbeck presented an affidavit by a professional engineer stating that although the pavement at and around the curve at which the accident occurred was free of holes, cracks or ruts, the pavement was “worn” to the point that it lacked the skid resistance necessary to maintain traction by a vehicle traveling at the posted speed limit − and was therefore “in disrepair.”

The county filed a motion for summary judgment, asserting that it was immune from liability for the Sanderbeck’s injuries under the sovereign immunity statute. It argued that, even if accurate, the opinion of the plaintiff’s expert regarding the skid-resistance of the pavement at the accident site did not allege any failure of the county to “repair” a defect in the roadway, and therefore did not establish a basis on which the county could be held liable. The trial court denied the county’s summary judgment motion and allowed the case to proceed.

The county appealed. On review, the 9th District Court of Appeals affirmed the trial court’s denial of summary judgment. The county sought and was granted Supreme court review of the 9th District’s decision.

Attorneys for Medina County assert that, prior to the 9th District’s decision in this case, no Ohio court has ever ruled that a political subdivision’s obligation to keep its roads “in repair” in order to preserve its sovereign immunity included a requirement to establish or monitor skid-resistance. They point out that the established meaning of the term “repair” is to restore a thing that has been damaged to a sound condition, and argue that the 9th District erred by finding that the county failed to repair the roadway where Sanderbeck’s accident occurred without any evidence about what the skid-resistance of the pavement was at the time the road was originally designed and constructed.

They contend that the intent of the legislature in enacting and recently amending the immunity statute was to summarily exempt political subdivisions from lawsuits seeking traffic accident damages, except in cases where there is substantive evidence that failure to adequately repair a damaged roadway caused the accident. If the 9th District’s denial of immunity in this case is upheld, they assert, political subdivisions will be forced to defend lawsuits based on after-the-fact estimates by plaintiffs’ experts that even though there was no unrepaired structural damage to a roadway at an accident site, that road was in “disrepair” because a curve was too severe or pavement too slippery to provide perfect traction at the maximum legal speed for any part of that roadway.

Attorneys for Sanderbeck point to evidence in their pretrial submissions to the trial court showing that county officials were aware there had been multiple accidents in which vehicles ran off the same roadway over several years prior to the crash that caused Michelle’s death. They argue that despite its awareness of a heightened accident risk to motorists, the county had taken no action to address that risk by repaving areas where cars attempting to navigate curves needed additional traction. They urge the Court to affirm the trial court and 9th District’s findings that this evidence at least raised a material question of fact regarding whether the county’s failure to remedy a known hazard constituted a failure to keep its roads “in repair.”

NOTE: Amicus curiae (friend of the court) briefs supporting the position of Medina County have been submitted by the Ohio Municipal League, the Ohio Association of Civil Trial Attorneys, and jointly by the County Commissioners Association of Ohio, Ohio Township Association and several other organizations representing the state’s political subdivisions.

ISSUE: Do the local self-government powers granted to Ohio limited home-rule townships under R.C. 504.04 include authority to assess impact fees on new construction projects within the township to cover the increased costs of providing roads, parks and police and fire protection to the newly developed properties?

BACKGROUND: Effective in 1999, the General Assembly enacted R.C. Chapter 504, which allows the residents of a township that meets certain criteria to adopt “limited home rule” status. Under that status, a township may “exercise all powers of local self-government ... other than powers that are in conflict with general laws,” except home-rule township “shall enact no taxes other than those authorized by general law.” The residents of Hamilton Township in Warren County voted to adopt limited home-rule status.

In 2007, the township trustees adopted a resolution implementing one-time “impact fees” to be collected from all parties who applied for zoning permits to construct new residential or commercial structures in the unincorporated area of the township. The rules implementing the resolution set different impact fees for various types of proposed new construction, (e.g., single family home, multi-unit residential, hotel/motel, retail/commercial, office/industrial ...) with the non-residential categories assessed on a per-1,000-square-feet basis. The overall impact fee for each type of property consisted of four separate component fees calculated to cover the costs to the township of providing roads, parks, police protection and fire protection for that type of property.

After paying the township’s impact fees under protest and obtaining zoning permits to go forward with new residential construction, the Drees Company and three other home builders filed suit against the township in the Warren County Court of Common Pleas. Their complaint sought a declaratory judgment that the township’s impact fees were actually an illegal “tax” that the township was not authorized to enact or collect under R.C. Chapter 504. The Home Builders Association of Greater Cincinnati, representing other residential builders in the southwest Ohio area, was permitted to intervene in the case as an interested party.

Both sides moved for summary judgment on the issue of whether the “local government powers” conferred on the township by virtue of its status as a limited home-rule township under R.C. 504.04 included the power to collect impact fees from applicants for new zoning permits. The trial court granted summary judgment in favor of the township. On review, the 12th District Court of Appeals affirmed the trial court’s decision. The builders sought and were granted Supreme Court review of the 12th District’s ruling.

Attorneys for the builders argue that the impact fees charged to applicants for new zoning permits meet the legal definition of a “tax” because 1) the fee assessed on an applicant is much greater than the cost to the township of reviewing a zoning application and issuing the requested permit; and 2) the fees collected by the township from individual zoning applicants are not used exclusively for the benefit of those owners’ properties, but are placed in four funds whose proceeds are used to pay for police, fire, road and park expenses that benefit all township residents, including those who live or work in pre-existing structures for which no impact fees were assessed.

The builders also contend that, because the self-government powers of limited home-rule townships are based on a legislative enactment and not on the state constitution, they are limited to powers specifically granted to townships by a statute. Because the state laws that set forth the ways in which townships may fund local services do not include any mention of impact fees on new construction, they say, the impact fees imposed by Hamilton Township are not authorized by a general law and are therefore invalid and unenforceable.

Attorneys for the township respond that R.C. 504.04 allows limited home-rule townships to “exercise all powers of local self-government,” which they say includes the power to assess fees for services provided by the township, subject only to the condition that a township resolution may not conflict with a general law of the state. In this case, they assert, the provisions of state law cited by the builders authorize various means by which any township (whether or not it has adopted home-rule status) “may” pay for roads, parks and police and fire protection services, but also indicate that such costs may be paid from “other funds” in a township treasury, and do not identify the enumerated funding methods as either mandatory or exclusive. They urge the Court to affirm the holding of the 12th District that, because the impact fees assessed on new construction are specifically intended to fund increases or expansions of township services that benefit the owners and occupants of those new structures, the fees are not “taxes” and are not in conflict with R.C. 4504.04 or any other general law.

NOTE: An amicus curiae (friend of the court) brief supporting the position of Hamilton Township has been submitted by the Ohio Township Association. Amicus briefs supporting the position of the builders have been submitted by the Ohio Home Builders Association, 1851 Center for Constitutional Law and National Association of Home Builders.

Contacts
Joseph L. Trauth, 513.579.6515, for the Drees Company and other appellant builders.

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